who's afraid of legal pluralism?

WHO'S AFRAID OF LEGAL PLURALlSM?Franz von Benda-BeckmannJOURNAL OF LEGAL PLURALISM2002 - nr. 473. Law as an analytical categoryIf law is to be an analytical concepl, the general shared properties of the concepthave lO be ciarified as well as the dimensions within which social phenomenasharing these properlies vary.Conceptual properties: What kind 01 social phenomena are 'law'?This fundamental question is rarely addressed in discussions of legal pluralism,although il has many consequences for one's conceplualisalion of pluralism andthe relalions belween law and social organisation. In the Iiterature, there seems tobe a general understanding thal law consists of rules and/or norms. In adc!ition,we are drowned in emphalic or malter-of-fact SlalemenlS aboul law as socialcontrol, law as culture, law as discourse, law as power, law as process. Suchslalemenls can be usefuI. They poinl al qualities and functions thal law, or al leaslmuch law, may have in actual life and Which may have been nol sufficiently been~ake~ i~IO accoun.l by olhers. But if one wants to avoid the reductionistic trap ofIdentlfymg law wuh process, culture, or social control, one has to say what is thispresupposed law that is also culture, process, power, social control, or whatspecific manifestation·or kind of power, process etc law ¡s.l.Aw as objectijied conceptionsI see law as a dimension of social organisation, rather lhan a specific domain.Law is lhe summary indication of those objeclified cognitive and normaliveconceptions for which validity for a certain calegory of people or territory isasserted. Conceplions are objectified or objeclivated, once lhe externalisedproducls of human activily anain the character of objeclivity (Berger andLuckmann 1967: 78). Cognitive conceptions state how things are and why theyare whal they are; nqrmative conceplions slate how things ought to be, must be orm~y ~e. I use Ihe term 'conceptions' as a colleClive lerm lhal.encompasses rules,pnnclples. categories, concepls, standards, nolions, schemes of meaning (seeBerger and Luckmann 1967; 1986: 96). Legal phenomena are cognitive andnormative conceptions Ihat are qualified by a number of specific criteria (see F.von Benda-Beckmann 1979, 1986, 1997). The main criteria I use are thefollowing, indicated most briefly here: In the mosl general sense, theseconceplions recognise and reslricl society's members' autonomy to behave andconstru~t lheir own conceptions. AII legal phenomena, including the cognitive~oncep~lOns, are normative in t~is sense. Through legal conceptions 'situationtmages of (elements) of lhe social and natural world (of persons, organisations.- 48 ­natural resources, social relationships, behaviour, occurrences) are constituted andconstrucled as meaningful categories, evalualed and given relevance. Relevancemeans lhat definite consequences are altached to and rationalised by reference tothe legal categories and their evaluation. There are three major categories ofrelevance: a) permissibility, b) validity, and c) simple relevance. Law becomesmanifest in two major manifestations, a) as general rules and principies thatevaluale typified situation images for lypified consequences as conditional 'if-then'schemes, and b) as concrele law that evaluates concrele .situation images forconcrete conseq~ences in terms of 'as-therefore' rationalisations.Dimensions 01 variation: Morphological variationSuch concepl of law obviously cannol be more than a cover term that indicates thelegal quality of social phenomena and encompasses a wide variety of empiricalphenomena. 16 However, its important properties are clear and allow for theelaboration of dimensions in which empirical manifestalions of law vary instructure, form, content and significance in social life, belween and within legalsystems. The following morphological dimensions are ralher obvious:• The extent to which general legal cognitive and normative conceptions havebeen instilutionalised and systematised; the scope of institutionalisation (Bergerand Luckmann 1967: 97). This concerns differences in the internal differentiationof bodies of rules conceived as sub-systems, for inslance the development ofpublic and private, civil or criminal, procedural and subslantive law. It alsoconcerns differences in their external differentiation, the extent to which law isdifferentiated from political, religious or economic ideas or systems.• The extem lo which knowledge, interpretation and application of law have beendifferentiated from every day knowledge; the extent of professionalisation andtheoretisation and sdemification (see Berger and Luckmann 1967). lt is here, that theconcepl of 'folk law' is ofien appropriate where knowledge of law and procedures islargely shared by most people and not entrusted lO specialised experts.16 See F. von Benda-Beckmann 1979, 1983, 1992a:2, 6. If Tamanaha states thatdifferemly from mosl approaches, his approach suggests that the label law isapplied to whal are often quile differem phenomena, sometimes involvinginstitulÍons. somelÍmes not (2000:315), this is certainly nol new. My definitiondid not involve a mulliplicity of one basic phenomenon, as Tamanaha imputed tohis legal pluralists (2000:315), but variable phenomena tha! shared the sameanalytically constructed crileria.- 49 ­